Boschenbach (Pty) Ltd and Others v Western Cape Nature Conservation Board and Another (19123/2012) [2012] ZAWCHC 240 (10 December 2012)

Boschenbach (Pty) Ltd and Others v Western Cape Nature Conservation Board and Another (19123/2012) [2012] ZAWCHC 240 (10 December 2012)

The court found that the respondent had made a final decision to refuse the permit application on 17 September 2012, despite its later denial. The respondent either misunderstood or misapplied its own legislative and policy requirements, or imposed conditions not required by law or policy. The applicants had complied with all necessary requirements, including submitting a complete habitat assessment and meeting fencing specifications. The respondent's conduct was unreasonable and procedurally unfair, causing unjustifiable prejudice to the applicants. Given the exceptional circumstances and the limited issues remaining in dispute, the court was satisfied that substitution of its own...

Citation
[2012] ZAWCHC 240
Parties
Applicant: Boschenbach (Pty) Ltd; Applicant: Finclan (Pty) Ltd; Applicant: Friedrich Sachse Breytenbach NO; Applicant: Ulrike Dohne Breytenbach NO; Applicant: Carel Johannes Breytenbach NO; Applicant: Naomi Erasmus NO; Respondent: Western Cape Nature Conservation Board; Respondent: Minister of Local Government, Environmental Affairs and Development Planning, Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 December 2012
Case Number
19123/2012
Procedural Posture
Review Application / Order Following Review of Administrative Decision
Outcome
Application granted. The respondent's decision to refuse the permit is set aside and the respondent is ordered to issue the permit subject to conditions.
Judges
Cloete AJ
Legal Topics
Promotion of Administrative Justice Act, Nature Conservation Permits, Adequate Enclosure Certificates, Judicial Substitution of Administrative Decision, Game Translocation Policy
Administrative Law Environmental Law Promotion of Administrative Justice Act Nature Conservation Permits Adequate Enclosure Certificates Judicial Substitution of Administrative Decision Game Translocation Policy

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Parties

Boschenbach (Pty) Ltd

Applicant

Finclan (Pty) Ltd

Applicant

Friedrich Sachse Breytenbach NO

Applicant

Ulrike Dohne Breytenbach NO

Applicant

Carel Johannes Breytenbach NO

Applicant

Naomi Erasmus NO

Applicant

Western Cape Nature Conservation Board

Respondent

Minister of Local Government, Environmental Affairs and Development Planning, Western Cape

Respondent

Procedural Posture

Review Application / Order Following Review of Administrative Decision

Legal Issues

  1. 1 Whether the respondent's refusal to issue a permit to import and keep two white rhino was lawful and reasonable.
  2. 2 Whether the respondent misunderstood or misapplied its own policies and legislative requirements in refusing the permit.
  3. 3 Whether the applicants complied with all necessary requirements for the permit under the relevant legislation and policies.

Ratio Decidendi

The court found that the respondent had made a final decision to refuse the permit application on 17 September 2012, despite its later denial. The respondent either misunderstood or misapplied its own legislative and policy requirements, or imposed conditions not required by law or policy. The applicants had complied with all necessary requirements, including submitting a complete habitat assessment and meeting fencing specifications. The respondent's conduct was unreasonable and procedurally unfair, causing unjustifiable prejudice to the applicants. Given the exceptional circumstances and the limited issues remaining in dispute, the court was satisfied that substitution of its own...

Court Disposition

Application granted. The respondent's decision to refuse the permit is set aside and the respondent is ordered to issue the permit subject to conditions.

Orders

  • The first respondent's decision to refuse the issuing of a permit to import and keep two white rhino at Boschenbach Private Game Reserve, taken on 17 September 2012 and conveyed on 1 October 2012, is set aside.
  • The first respondent shall forthwith issue a permit to import and keep two white rhino at Boschenbach Private Game Reserve subject to standard conditions and the special conditions set forth in annexure 'A'.